Over the past few months, United States Citizenship and Immigration Services (USCIS) has been applying a more restrictive definition of “affiliation” for health care institutions. An affiliation with a university exempts hospitals from having to wait until October to apply for H visas. This exemption is especially advantageous in the health care setting, since many hospital residency and fellowship programs start in June and July, considerably earlier than the October application date.

USCIS’s narrow interpretation of “affiliation” has resulted in visa applications—for extensions as well as for new visas—being denied to health care professionals working in hospitals affiliated with universities, which has in turn impacted graduate medical education programs and the allied health care positions of many health care institutions. The net result has been the reduction in staffing and interruption of graduate medical education programs, among others. Accordingly, on March 16, 2011, USCIS announced interim procedures that will be in effect while the agency reviews its policy on H-1B exemptions for entities affiliated with or related to an institution of higher education. 

The interim procedures are effective immediately and will be followed until further guidance is issued. Under the interim procedures, USCIS will give deference to determinations made since June 6, 2006, which state that the nonprofit entity satisfies the affiliated with / related to criteria and therefore is exempt from the H-1B statutory cap. However, deference will not be given if any significant change in circumstances has occurred since the determination or if there was “clear error” in the prior determination. Also, the nonprofit entity bears the burden of demonstrating it received prior approval of exemption status by providing the following:

• a copy of the previously-approved cap-exempt petition (Form I-129 and relevant attachments);
• a copy of the previously-issued USCIS approval notice (Form I-797) issued since June 6, 2006;
• documentation previously submitted in support of the claimed cap exemption; and
• a statement attesting that the organization was approved as cap-exempt since June 6, 2006.

In its announcement of the interim procedures, USCIS stressed that it will engage the public in any forthcoming guidance.

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